First Amendment Under Fire
Reported by Marie Therese - November 19, 2004 -
Transcript of a Segment from Lou Dobbs Tonight. November 18, 2004.
LOU DOBBS: A reporter in Providence, Rhode Island, at we reported to you at the outset of this broadcast, faces up to six months in jail, after he was convicted today of criminal contempt. Jim Taricani refused to disclose who gave him a FBI videotape showing a city official taking a bribe.
Taricani called his conviction an assault on journalistic freedom. He said he never expected to go to jail for simply doing his job. That case one of many, unfortunately, like it around the country.
Joining me now to discuss what is categorically a mounting assault on the freedom of the press are Mort Zuckerman. He is the editor in chief of "U.S. News & World Report." Floyd Abrams joins us as well. He's one of the leading attorneys in this country specializing in the First Amendment. And Judith Miller, reporter for "The New York Times." She has also been found guilty of attempt contempt of court for refusing to reveal information about her confidential sources. She's appealing that decision. Floyd Abrams is representing her and "The New York Times."
We also tonight invited several government officials to join us for this discussion. They either declined or simply did not respond to our invitation. Thank you all for being here. Judith, you are, at this point, squarely in the crosshairs of what is a broadening assault on the first amendment, by any definition.
JUDITH MILLER, "NEW YORK TIMES": Absolutely. There are a dozen reporters in my situation, though perhaps not as far along.
DOBBS: And you are, at this point, appealing. Floyd Abrams, where do we stand?
FLOYD ABRAMS, FIRST AMENDMENT ATTORNEY: Well, we're arguing the appeal on December 8th in the court of appeals in Washington. And that involves Judith Miller and Matt Cooper of "Time" magazine, and we'll hear from that court.
DOBBS: Judith, at this point, you're putting your person at risk. Is there, in your judgment, I think I should say, first of all neither you nor "The New York Times" published anything to do with the material involved in this.
That's correct, isn't it?
MILLER: That is correct, I'm facing jail for something I never wrote.
DOBBS: And what is it precisely that the government wants to get from you, that is, in any way, material to their -- to the broader investigation?
MILLER: Well, they want to talk to me about an alleged source that I may have had a conversation with about who leaked the name of Valerie Plame, the wife of Joe Wilson. And the government says that because government officials have signed waivers of their confidential discussions with journalists, that I'm no longer bound by my pledge of confidentiality to the people I may have discussed this issue with.
DOBBS: Assuming those people were the ones who were your sources.
MILLER: Assuming those people were the ones, and I simply will not go down this road and begin to discuss potential sources, because that would mean that no one would ever come to me again and feel confident that I would protect him or her if they choose to expose wrongdoing or tell me their side of the story. I mean, this is not about me. This is about the public's right to know.
DOBBS: Mort, the idea that journalists, their editors and their publishers, you often find yourself in the role of all three, to be assaulted in this way.
Is this a turning point in the history of the first amendment?
MORT ZUCKERMAN, "U.S. NEWS & WORLD REPORT": Well, it very well can be. I think it's outrageous what's going on. The case that you mentioned I think is outrageous, and going after Judy is outrageous on many grounds, on its own merits. But on the fact, for example, that one of the other people who did publish this information, at least to the public knowledge, we don't know whether he has been interrogated by the special prosecutor or not. I mean, spending millions of dollars to go after this case, I think, is absolutely ridiculous.
We are in a position now where it seems to me what is required, although it's highly unlikely politically, is some kind of federal shield law to protect journalists and their sources both for confidential information and indeed nonconfidential information, because otherwise they're not going to be able to do their job at a time when the role of journalists, in exposing wrongdoing on the part of government officials or at least concealed policies on the part of government officials is absolutely necessary and essential.
DOBBS: Floyd, in the Taricani case in Providence, the judge made it very clear, he was relying upon what is considered a muddled decision, the 1972 Supreme Court decision. Which was -- is not explicit, certainly not to the satisfaction of those of us who are engaged and were protected by the First Amendment.
What is your thought about the idea of relying on the '72 case?
ABRAMS: Well, the '72 case called Branzburg vs. Hayes was a 5 to 4 opinion in which the fifth judge, Justice Louis Powell, also wrote a separate opinion of his own saying, in effect, that there really ought to be some way to balance the interests, every case issue by issue as to how much people really need this information. So the reality is, we don't know what that case means. One justice said, this was four and a half to four and a half. And we don't really know the ultimate impact of the case. We may find out in our case.
But at this moment, the law is muddled. And one of the results of that, is that when prosecutors go to court and say, we want this information, we have some good reason, we need the information, unfortunately, there are some judges who have agreed and are really sort of cracking down. And that's one of the things that I find particularly distressing about the whole thing, because this arises at a time in our history when we've never needed an alive, vibrant, inquiring press more. And in which it may be that the press has never been more disliked by the public.
DOBBS: And one could argue that talented, and I'll say this in front of you, talented, energetic journalists digging for truth have never perhaps been scarcer in our craft. The idea that others have, in point of fact, given limited testimony about their sources in this case has occurred with journalists from NBC, "The Washington Post," and "Time" magazine, although Matt Cooper resisted, going farther than that limited -- the journalist at "Time" magazine going farther than that limited response.
Does that weaken your case, in your mind?
And I know that -- I'm asking both of you. I'm going to ask you first, Judith, if I could.
MILLER: Well, I think every journalist has to come to his own decision about cooperating. I think that I decided from the very beginning that I didn't want to go down the road of beginning to testify about people who may or may not have been sources. I don't think that their decision affects the principle at stake here in this case.
ADAMS: And I'd also add that the experience of Matt Cooper, who I represent, sort of bears witness to what can happen. He was told and I was told, that if he would just testify about one source, that -- and that source then gave his permission, gave his permission, he never would have done it if the source had agreed. But if he would talk about the one source, that would be the end of it. And the prosecutor said, look, if I have to call you back again, I will. Well, sure enough, that's what happened. The questions were about the one source. He answered the questions. And, again, only because the source said he could. And then a week later, we got another subpoena. And so now they want to know everybody else other than that source to whom he spoke. So, you know, while journalists may disagree about some aspects of almost tactics, the reality here is that this is no end.
ZUCKERMAN: A slippery slope. A very slippery slope.
MILLER: Which is why I didn't want to go down that road to begin with.
DOBBS: Mort, as you talk about a shield law, 31 states have a shield law in this country, yet there is no federal overarching protection, as you suggest. We need one. The politics of this are also, obviously, pertinent. The likelihood, in your judgment that a shield law could be enacted?
ZUCKERMAN: Well, somebody asked me about that, and asking whether it was next to zero. I said that overstates it, it's zero. There is no chance that such a legislation will be enacted in the present political environment. The press is very unpopular. And the control of the both houses and, indeed, the administration, I think their views are very, very different about this. I mean, I frankly think they treat the press as the enemy, and this is not going to be something they're going to give to the press to enhance their capability to function.
ABRAMS: That's sort of ironic, if I may, that this all began with Bob Novak, then whom no one is more conservative, and who himself made a promise of confidentiality. And while we don't know what's going on with Mr. Novak, we do know that he promised confidentiality and then he did a column based on that promise of confidentiality.
DOBBS: Newspaper column. (UNINTELLIGIBLE) Since he is also a colleague of ours.
ABRAMS: Indeed. My point is...
(CROSSTALK)
DOBBS: But as we look at the situation that you're in, Matt Cooper and Jim Taricani, and now a widening spread of this, the press is not particularly popular with the public in this, and often has to dig up unpleasant facts for the public. The political climate is not right for a shield law. What is the most appropriate strategy to take here? Is it simply within the court system itself and hope you win on appeal?
ABRAMS: Yes. I mean, there are only two places to go. DOBBS: I'm not suggesting that with Floyd Abrams, that you don't have considerably more than a hope.
ABRAMS: Thank you. No, all we've got is the courts and the Congress, the only place we can go. And if we don't win in one of them, then the world is going to change. Because we really can't go on with a system where the law is clear, and it's not now. But it's clear that journalists can't promise confidentiality. If they really can't, they won't.
MILLER: Especially, in an environment of growing secrecy.
ABRAMS: And if they won't.
MILLER: I mean, since 9/11, for understandable reasons, but still, so much more is now classified or determined to be, quote, sensitive, which means it's not distributed. And unless the public wants to hear only from those who are authorized and blessed to speak from the government, we need to encourage those whistle blowers to come forward. And you can't encourage that if they believe that we can't protect them. That's what's at stake here.
ZUCKERMAN: Another problem, though, that is emerging is the definition of a journalist. With the Internet, almost anyone can self-declare themselves to be journalists. And so where do you draw those lines? That's going to become an increasingly difficult issue.
ABRAMS: Many of the states who have these shield laws, you mentioned 31 states, define journalist very broadly to adjust your point, Mort. And to say basically, people that gather information for dissemination of it to others. That's who gets protected.
DOBBS: Well, there is no question about the credentials of certainly the "New York Times," "U.S. News & World Report," and no question about your courage. And all of us in the craft, it is too easy and simply too (UNINTELLIGIBLE) to say thank you. But with great respect and thanks, Judith Miller, Floyd Abrams and Mort Zuckerman.
That brings us to the subject of tonight's poll. Would you support a federal shield law for reporters? Yes or no. Please cast your vote at CNN.com/lou. We'll have the results coming up for you later in the broadcast.
COMMENT
Thanks to CNN for their wonderful online transcript service. This is only an excerpt. Dobbs also interviewed Revered Jerry Fallwell, who is promising to mobilized evangelicals to fight for the Christian message in Washington.
You can access the complete transcript at CNN Transcripts.
So far on FOX News Channel I've only seen this story mentioned in the webcrawl. Apparently, they consider it far less newsworthy than bashing "Hill and Bill."
